BANGKOK, Jan 20, 2010 (IPS) - Sri Lanka’s nearly three decades of civil war may be over, but questions about war crimes and gross human rights violations committed during the final stages of that battle in 2009 continue to haunt the South Asian nation.
Yet a commission of inquiry to examine such allegations is not the answer, says Kishali Pinto-Jayawardena, a lawyer and human rights advocate. "Commissions of inquiry have been very counter-productive for victims seeking justice," she says.
Such commissions have largely served the interests of governments to take cover behind international and domestic criticisms of flagrant human rights violations, adds the 42-year-old who authored a report, ‘Post-War Justice in Sri Lanka: Rule of Law, the Criminal Justice System and Commissions of Inquiry’, released this week by the Geneva-based International Commission of Jurists (ICJ).
The Sri Lankan conflict involving the secessionist Tamil Tigers saw over 70,000 people killed. The United Nations estimates that 7,000 civilians died during the final months of the battle, which ended in May last year.
An equally disturbing number of victims were documented in another conflict in the battle-scarred island, which was waged in the late 1980s and involved the state and youth from the majority Sinhalese community. An estimated 40,000 Sinhalese youth ‘disappeared’ during that Marxist uprising to overthrow the government.
"The lack of state accountability for human rights violations in Sri Lanka crosses ethnic divides and all governments and parties," the 175-page ICJ report reveals. "Neither the regular criminal justice system nor commissions of inquiry have been able to satisfy the state’s obligation to its citizens."
The issues of justice have not been limited to the country’s Tamil and Muslim minority, says Pinto-Jayawardena, who is also an award-winning newspaper columnist. "It is a concern for the Sinhalese majority, too."
What is urgently needed, she argues, is a reform of the judicial system, since it has been ineffective to investigate and prosecute perpetrators of human rights violations, ranging from rape, torture, killings to disappearances since 1977.
IPS spoke to Pinto-Jayawardena following last Monday’s launch of the ICJ report in Bangkok.
Q: It has been eight months since the war in Sri Lanka came to a bloody end, yet the government is dogged by growing international concerns about alleged war crimes committed during the final stages of the battle between Sri Lankan troops and the Tamil Tiger separatists. Are you surprised at this turn of events?
A: I am not surprised that concerns are being raised even now, given the nature of events that took place. But I also believe that the Sri Lankan people do have the capacity and the will to also show concern about these questions of accountability.
Q: Meaning that there is an indigenous concern for justice?
A: Yes, and I believe that the reliance on such indigenous and growing sense of acknowledgment of the abuses that have happened – not only during the end of the immediate conflict but also, historically, back in the 1980s and 1990s – is a healthy development. It is far better than having to rely on international mechanisms and pressure, which is always governed by international realpolitik.
To my mind, fostering an inherent sense of justice, which I believe the Sri Lankan people still possess, is really one way out for us.
Q: It seems like the moment has come for the Sri Lankan government to appoint a commission of inquiry to investigate the alleged war crimes committed during the final battle. Is this the way forward?
A: On the contrary I do not think that appointing a commission of inquiry would be an appropriate mechanism to address issues of impunity and accountability. Past experience has shown us that these commissions do not fulfil any useful purpose because they are subverted by political forces and by the lack of political will.
The answer lies in directing public concern towards the working of the ordinary system of law and accountability, such as the issues of investigation, prosecution and legal redress. People are tired of turning to these commissions, expecting it to perform miracles, and it does not happen.
Q: The report you authored maintains a similar view – that the commissions of inquiry appointed by Sri Lankan governments between 1977 through 2001 have been an eyewash?
A: I would say very much so. The report reveals that there have been bad commissions and good commissions, where the latter gave some good recommendations.
But even after that, these recommendations were not implemented by successive governments, so the end result has been negative, and I do not think this pattern will change in the future if we appoint another.
The bad commissions, on the other hand, were patently political; they were appointed politically and arrived at political verdicts that have suited the government of the day.
Q: So no matter who has led Sri Lanka in the past three decades, the commissions appointed to look into human rights violations have revealed a common pattern?
A: That was a disturbing feature of our analysis. Each government followed a pattern of subverting the commissions of inquiry that were initially appointed to appease the public or to appease the international community.
Q: Who were the victims or the families of victims who were denied some sense of justice through such commissions? Is there a particular profile that your study unearthed?
A: The one common feature is that all the people who looked to the commissions for justice were from the ordinary, poor segments of society. It was the same for the Sinhalese, Tamil and Muslim victims. These are the people with the least influence in the country. Very seldom do you find a victim in the commission of inquiry from among the country’s elite.
Q: These victims have every reason to lose faith in such commissions as a venue for justice.
A: Yes. Definitely.
Q: What kind of justice were they hoping to get?
A: It varies. Some people came before the commissions of inquiry in 1994 expecting to get some kind of acknowledgment of the wrongdoings done to them as a form of justice. But that acknowledgement did not happen for reasons that were due to the manner the commission had to function – not given sufficient time, unable to call the perpetrators.
Q: The 1994 commission looked into the violence in southern Sri Lanka involving the state and an uprising of Sinhalese youth, not the Tamil separatists?
A: Yes, and even after the commission finished, the reports were not made public till some years later. So the victims were kept in the dark.
Q: Which means that the culture of impunity is allowed to perpetuate?
A: Commissions of inquiry have actually contributed to the culture of impunity.
Q: Despite your criticism, there are some countries looking at Sri Lanka as a model to follow when it comes to appointing commissions of inquiry to investigate human rights violations.
A: I think they should desist from going down the same route. Our report shows that these commissions have been counter-productive for victims seeking justice, and even when we have had good commissions, they have failed to meet the initial expectations.